Ambiguity in Legal Interpretation: William Eskridge's Response
1. I have argued in both historical work (101 Colum. L. Rev. 999) and empirical work (96 Geo. L.J. 1083) that judges applying textual plain meanings or finding ambiguities are influenced by their personal or political preferences and (relatedly) by normative concerns, at least in the "hard cases" SCOTUS hears. Does the authors' study confirm some evrsion of this idea? I am not sure.
2. The methodology for the questions seems to me to invite normativity from respondents: The authors repeatedly ask which reading of the statute is "better". I have no idea how a first-year law student would understand this kind of inquiry; I'd understand it as asking me to see "ambiguity" (or whatever) as a normative rather than a purely descriptive endeavor. It is hard for me to tell how serious a concern this is.
3. Using criminal statutes may muddy the experiment in several ways, as the authors discuss and maybe in one additional way. When I was a first-year law student, I was aware that criminal statutes were supposed to be construed in favor of the defendant; some students may know this, and that kind of knowledge may make questions about "ambiguity" ambiguous. Probably a minor concern, but it bugs me.
4. Can we generalize from first-year law students (taking the survey) to judges (who decide cases)? At this point, I do not see why we should make that leap. Judges know a lot more than law students, and they have been socialized into legal thinking; additionally, their decisions are accountable to critical scrutiny from other judges, from the press, from academics, and (for many state judges) from the public/voters. Are judges more "disciplined" in fencing out norms? I do not think so, and my empirical work suggests not, but I do not see how surveys of law students offer conclusive (or even strong) evidence about judges.
5. I am intrigued by the authors' finding that law students were less likely to bend text to reflect their preferences when the question concerned external meaning rather than their own understanding of meaning. For the reasons noted above, I am not sure the authors have proven this, but it is a neat hypothesis. It does strike me that older, legally savvy judges might not be so much influenced by the wording of the inquiry, however.
6. How best to prevent judges (not just law students!) from importing their preferences into judgments about plain meaning/ambiguity? This may be an impossible task, but if some headway can be made against this tendency, there is empirical work suggesting one source as potentially constraining. Jim Brudney and Corey Ditslear have done important empirical work arguing that considering legislative history, and not just text and textual canons, actually counterbalances political preference. They have an article in Judicature making this point, and perhaps more recent articles.
Anyway, this is an area for fruitful inquiry. Thanks to the convenors and the authors.